36 PROCTOR | July 2017
Court rejects
order on $350k of
husband’s super
Property – enforcement order compelling
husband to access his super to pay wife
$350,000 set aside on appeal
In Mackah [2017] FamCAFC 62 (3 April 2017)
the Full Court (Thackray, Aldridge and Moncrieff
JJ) allowed the husband’s appeal against an
order of the Family Court of WA (on the wife’s
application to enforce a consent order that he
pay her $350,000) that he apply to the trustee
of his self-managed superannuation fund (of
which he was sole member) for payment of
a transition-to-retirement pension, the trustee
to pay that pension to an account nominated
by the wife but in the husband’s name, with
authority for “either to sign”.
Thackray J (with whom Aldridge and Moncrieff
JJ agreed) said ([27]):
“... [I]t is unnecessary to consider all of the
grounds and the ... argument ... in support
... a s I ... consider [that] the orders are
inconsistent with the legislative scheme
regulating Australian superannuation
entitlements, and therefore cannot stand.”
Thackray J continued (from [28]):
“It is not in dispute that the superannuation
fund is a regulated superannuation fund within
the meaning of the Superannuation Industry
(Supervision) Act 1993 (Cth). ( ... )
[29] Regulation 6.22 of the Superannuation
Industry (Supervision) Regulations 1994 (Cth) ...
relevantly provides:
(1) Subject to ... regulations ... 7A.13, 7A.17
and 7A.18, a member’s benefits in a regulated
superannuation fund must not be cashed in
favour of a person other than the member or the
member’s legal personal representative ... ( ... )
[38] The wife’s ... counsel submits ... that ...
no provision of [the order] formally contravenes
this requirement. ( ... ) Instead, the trustee must
pay the husband’s superannuation income into
an authorised deposit account with authority
for ‘either [party] to sign’ ...
[39] The effect of the orders is clear –
money is to be removed from the husband’s
superannuation fund and paid to the wife
in satisfaction of a debt.
[40] In my view, this is a clear contravention
of reg 6.22 since the benefits in a regulated
superannuation fund are being cashed in favour
of a person other than the member of the fund
or his legal personal representative.”
with Robert Glade-Wright
Child support – Full Court overturns order
staying Canadian child maintenance liability
In Child Support Registrar & Vladimir and
Anor [2017] FamCAFC 56 (31 March 2017) a
Canadian Court made child maintenance orders
in 2011 and 2013 in favour of the mother (who
lived in Canada) against the Australian resident
father, which in 2014 were registered by the
Child Support Registrar (CSR) under s13 of the
Child Support (Registration and Collection) Act
1988 (Cth) (CSRCA and CSRC Act). The Full
Court (Thackray, Strickland and Ainslie-Wallace
JJ) granted the CSR’s application for leave as
a non-party to appeal, allowing the appeal from
a consent order made by the Federal Circuit
Court (FCC) in 2015 staying those orders.
The Full Court ([30]-[38]) said that the Canadian
order was an “overseas maintenance liability”
as defined by s4 CSRCA (“a liability that arises
under a maintenance order made by a judicial
authority of a reciprocating jurisdiction”); that
Canada was prescribed by Schedule 2 of the
Family Law Regulations to be a reciprocating
jurisdiction, and that the order was a registrable
maintenance liability which, when registered,
became a debt due to the Commonwealth
under s30 CSRCA.
The FCC granted the father a stay under
s111C pending hearing of his application for
variation of the maintenance order under FL
Reg 36 (a Reg 36 order being provisional under
Reg 38 until confirmed by the reciprocating
jurisdiction under Reg 38A). The CSR argued
([45]) that “the proper construction [of s111C(1)
(a)] requires that there be ‘proceedings’ on
foot ‘where the Court’s jurisdiction to hear and
determine those proceedings arises under the
CSRC Act’. If that construction is correct, then
his Honour did not have jurisdiction to make the
orders under s111C, because the proceedings
on foot were ... proceedings pursuant to the
Regulations, and not the CSRC Act”.
The Full Court agreed, adding ([47]):
“ ... Indeed, that construction has support
from at least one decision at first instance ...
Leisel [2011] FamCA 624 at [14]-[17]. Thus,
his Honour did not have jurisdiction to make
the stay order under s111C.”
Property – wife was two days late to refinance
under property order – husband’s appeal of
enforcement order granted to wife dismissed
In Bebbington [2017] FamCAFC 31 (8 March
2017) consent orders required the husband
to transfer his interest in real property to the
wife within 45 days, she contemporaneously
to refinance a mortgage and pay him $33,000,
the property to be sold in default ([4]). While a
transfer was signed and refinance approved,
the wife was unable to settle until the 47th day.
The husband refused to complete, invoking
the sale clause.
Upon the wife’s enforcement application, Judge
Purdon-Sully ordered the transfer, refinance and
payment to occur within 28 days. The order
was carried out and the husband paid but he
appealed, arguing that the court had “varied the
substance” of the consent orders ([11]). After
citing authority as to the discretionary nature of
enforcement, Kent J on appeal said ([25]-[26]):
“ ... [I]mportantly in this case there is no
executory order to be carried into effect. The
husband, not having obtained a stay of the
... orders, acquiesced in them being carried
into effect. ... ”
Kent J continued ([34]-[35]):
“ ... The orders did not prescribe that time
was of the essence for the acts to be performed
nor can the orders as a whole be sensibly
interpreted as producing that result ... to mean
that if the 45 day period was not strictly adhered
to but performance by the 47th day was
achievable (as was the case) the ... substantive
rights conferred by the orders would be, as
a result of such delay, materially different.
The primary judge found [that] ‘[w]hilst having
made the consent orders ... the Court is
functus officio with no power to vary the
substance of the orders, it does have the
power to make machinery orders to give
effect to the orders’. No issue is taken
with this statement of principle.”
In dismissing the appeal Kent J said that the
order “extending the time for the transfer to be
effected did not alter the right of the husband
to seek the sale of the property if the wife
was unable to refinance the mortgage”, thus
([45]) “[t]he orders ... were consequential or
machinery in nature”.
Robert Glade-Wright is the founder and senior editor
of The Family Law Book, a one-volume looseleaf and
online family law service (thefamilylawbook.com.au).
He is assisted by Queensland lawyer Craig Nicol, who
is a QLS accredited specialist (family law).
Family law